White House Asks for Review of Preemption

WASHINGTON — The White House sent a memo on Wednesday instructing all executive departments and agencies to review the legal basis for preemption doctrines.

In the memo, the administration laid out how and when the agencies can write preemption standards.

It prohibited agencies from preempting state law through regulation preambles except when preemption was included in codified regulation and including preemption provisions in regulation except when justified by legal principles governing preemption. The White House also directed the executive departments to review their regulations issued within the last 10 years that contain preemption statements to decide whether such statements are justified.

The memo never mentioned banks or bank regulators but it comes the month before the Supreme Court is set to decide whether the Office of Comptroller of the Currency overstepped in its 2004 preemption interpretation of visitorial powers.

In the case of Cuomo v Clearing House LLC, justices are deciding whether states can enforce their own laws against national banks. At issue is the OCC's 2004 preemption doctrine that lays out the powers of the agency over national banks, including exclusive visitorial and enforcement abilities.